Morton v. State, 4367.

• Decision Date: 09 October 1944
• Docket Number: No. 4367.,4367.
• Citation: 182 S.W.2d 675
• Parties: MORTON et al. v. STATE.
• Court: Arkansas Supreme Court

182 S.W.2d 675

MORTON et al. v. STATE.

No. 4367.

Supreme Court of Arkansas.

October 9, 1944.

Appeal from Circuit Court, Saline County; Thomas E. Toler, Judge.

C. C. Morton and Ralph Ashcraft were convicted of burglary and grand larceny, and they appeal.

Reversed and remanded for a new trial.

P. E. Dobbs, of Hot Springs, and John L. Hughes, of Benton, for appellants.

Guy E. Williams, Atty. Gen., and Oscar E. Ellis, Asst. Atty. Gen., for appellee.

FRANK G. SMITH, Justice.

Separate informations were filed against appellants, Morton and Ashcraft, each containing two counts, one count charging the crime of burglary, the other the crime of grand larceny. Over the objections and exceptions of appellants, the cases were consolidated and tried together. Appellants were found guilty on both counts, and verdicts of six years on one count, and twelve years on the other, were returned, and from the judgment pronounced upon these verdicts is this appeal.

We think it was error to have consolidated and tried these informations together, over the objections of appellants. Had the prosecuting attorney elected so to do, he could have indicted or filed an information charging appellants jointly with the commission of these crimes (Sec. 3016, Crawford & Moses' Digest, as amended by Initiated Act No. 3, Acts 1937, p. 1384, now appearing as Sec. 3838, Pope's Digest), in which event appellants could have been put to trial jointly, even though they had asked and been denied a severance. This is true, because Section 29 of Initiated Act No. 3, which appears as Sec. 3976, Pope's Digest, confers that discretion on the trial judge. This Initiated Act was adopted at the 1936 general election, and Sec. 29 thereof reads as follows:

"Section 29. Severance in felony cases. The section of Crawford and Moses' Digest numbered 3140 is hereby amended to read as follows:

"Section 3140. Severance in felony cases. When two or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial; when indicted for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court. When separate trials are ordered in any case, the defendants shall be tried in the order directed by the court."

It will be observed that the provisions of the Act are applicable only to defendants jointly indicted. Prior to its passage it had been held that the trial court is without authority, over the objections of the defendant, to order the consolidation of separate cases under different indictments, for the purpose of trial. Davis v. State, 118 Ark. 31, 175 S.W. 1168, 1169. The case just cited was one in which the defendant was charged with having operated a blind tiger, at a designated location. The charges were the same in each case, and required the same testimony to convict, except only that the law was alleged to have been violated on different dates. It was said in that opinion that: "It is true there is much good reason for requiring the consolidation for trial of misdemeanor cases, and especially where the offenses charged are of a like kind or class and against the same defendant, but it must continue to address itself to the Legislature for effecting improvement in our criminal procedure, rather than to the courts, which are bound by existing laws."

The cases here involved are felonies, and not misdemeanors.

Prior to the enactment and adoption of Initiated Act No. 3, the practice of consolidating separate cases under separate indictments for the purpose of trial was criticized and condemned in the case of McClellan v. State, 32 Ark. 609. In the case of Setzer v. State, 110 Ark. 226, 161 S.W. 190, it was held, to quote a headnote, that "While it is not good practice, it is not error to try two indictments against one defendant, together, if done with the defendant's consent." In the case of Halley v. State, 108 Ark. 224, 158 S.W. 121, 123, a defendant was tried upon the charge of assault with intent to kill, and at the same time his wife was put to trial upon a charge of perjury, for having testified falsely at the examining trial of her husband for the assault alleged to have been committed upon her. The joint trial was with the express consent of the parties. The husband was convicted, and appealed, and in the opinion affirming his conviction it was said: "While the court would have no authority against the objection of the defendant to try the cases together, yet as the record affirmatively shows the defendant expressly consented to it, and inasmuch as the record does not show he was prejudiced thereby, he cannot now be heard to complain of the action of the court which was superinduced by him."

Now, Sec. 3976, Pope's Digest, confers the discretion upon the trial judge, where defendants are jointly indicted, to deny the right of severance. We so construed the statute in the case of Graham and Seaman v. State, 197 Ark. 50, 121 S.W.2d 892, and that holding was reaffirmed in the cases of Johnson v. State, 197 Ark. 1016, 126 S.W. 2d 289; Morris and France v. State, 198 Ark. 1040, 132 S.W.2d 785; Bennett and Holiman v. State, 201 Ark. 237, 144 S.W. 2d 476, 131 A.L.R. 908; and Nolan and Guthrie v. State, 205 Ark. 103, 167 S.W.2d 503.

The electors did not, by Initiated Act No. 3, confer the discretion to order the consolidation for trial of indictments against defendants separately indicted. This, no doubt, for the reason that it was thought that if the prosecuting attorney, to conserve time and save expense, wished to try jointly two or more persons for the same offense, he might inform against or indict them jointly, and could try them jointly over their objection. Had they been jointly indicted, it would still have been within the discretion of the court to permit them to be tried jointly or separately. Sec. 3975, Pope's Digest.

Sec. 3976, Pope's Digest, was amended by Act 359 of the Acts of 1943, page 800. The amendment made the provisions of the Act applicable in the trial of all felonies, whether capital offenses or not, but we will not consider the effect of this Act 359, for the reason that it did not become a law. It undertakes to amend an Initiated Act, and while the General Assembly has this power, it may exercise that power only by vote of two-thirds of all the members of both houses of the General Assembly. The I. & R. Amendment No. 7 provides that: "No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any City Council, except upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly, or of the City Council, as the case may be."

When placed upon its final passage, Act 359 received only 62 votes in the House, as disclosed by the journal of that body, which is less than two-thirds of the total membership of the House, and this vote was not sufficient to amend an Initiated Act.

The record presents a close question as to whether a confession alleged to have been made by appellant Ashcraft, which implicated both himself and his codefendant, Morton, had been freely and voluntarily made. However, in accordance with the practice frequently approved by this court, testimony was heard, in the absence of the jury, as to the circumstances under which the confession had been made, and after hearing this testimony the confession was admitted in evidence.

Notwithstanding the admission of this confession in evidence, appellants had the right to have the jury determine whether it had been voluntarily made, and to that end had the right to have the testimony heard by the trial judge in chambers, in the absence of the jury, offered to the...